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TMI Blog1971 (2) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Income-tax and Sales Tax, Cannanore, under section 34 of the 1963 Act. The second proviso to subsection (1) of section 34 provides that no appeal shall be entertained unless it is accompanied by satisfactory proof of the payment of the tax or other amounts admitted by the appellant to be due. There is no dispute that it is not necessary that the proof of payment of the tax or other admitted amount should accompany the appeal, but it is sufficient that it is furnished before the hearing of the appeal. The net turnover furnished by the petitioner in its return before the Sales Tax Officer was Rs. 6,15,739.32. But the return was rejected, and the turnover was assessed at Rs. 23,20,212.50. The petitioner paid the tax due on the turnover fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the tax payable on the net turnover shown in the petitioner's return is only Rs. 13,950.77. According to the second respondent the tax admitted by the petitioner is Rs. 55,952.34; and it has to pay the balance Rs. 42,001.47. It is because the petitioner failed to pay the said amount that the second respondent dismissed the appeal by his order exhibit P-5. 4. The only question for decision is what is the admitted tax payable by the petitioner under the second proviso to section 34(1) of the 1963 Act, for his appeal being entertained. Three views are plausible. They are: (i) the admitted tax is the tax payable on the turnover furnished by the assessee in the return; (ii) it is the tax payable on the turnover conceded by the assessee duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted tax liability for the purpose of the proviso to section 9(1) of the Act, regard should be had to the position taken by the appealing assessee in the memorandum of appeal. The appellate authority should not be guided in the matter by what has been stated in the return filed by the assessee. The appellate authority should examine the memorandum of appeal and determine, by reference to the grounds set out in the memorandum and the relief sought in it, what is the turnover and the rate of tax admitted and not disputed by the assessee at the stage of filing the appeal." The learned Judge has stated very weighty reasons for the above conclusion; and I respectfully agree with the same. It is not, therefore, necessary to repeat them here. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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